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Earlier today, we published our client alert Trump Administration Seeks to Limit Coverage of Clean Water Act, Executive order to set out a new definition of “Waters of the United States” discussing a February 28, 2017 executive order directing that the Waters of the United States Rule (commonly referred to as the WOTUS Rule) be reviewed and revised or repealed. Although the executive order starts the process, its completion is expected to take at least a year or two given the formal administrative process required for repeal or replacement. In 2016, the WOTUS rule was stayed by the Sixth Circuit Court of Appeals pending further action. The repeal will be significant for project developers, such as solar projects and real estate developers, as well as for farmers and ranchers, mining companies and other energy companies. More administrative actions are expected given the aggressive approach by the Trump Administration to roll back the Obama Administration’s regulation on this issue.

Additional Source:  Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule; Construction Industry to See Greater Federal Footprint in Projects with New “Waters of the United States” Rule

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On February 24, the Texas Supreme Court released several decisions, including two rulings involving aspects of environmental law. The cases are ExxonMobil Corporation v. Lazy R Ranch, et al., and ExxonMobil Pipeline Company, et al., v. Coleman.

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Referencing Executive Orders issued by past administrations, on February 24, 2017, President Trump issued a new Whitehouse-300x225Executive Order: “Enforcing the Regulatory Reform Agenda.” The Executive Order establishes new procedures and timelines by which most federal administrative agencies must conduct their regulatory planning and review.

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In The Texas Supreme Court Clarifies “Common Carrier” Status Criteria, Pillsbury attorneys Anthony Raven, Olivia Matsushita and Andrew White discuss the Texas Supreme Court’s recent opinion in Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, Ltd. Among other things, the Court provides judicial clarity on the “reasonable probability” public use test that might positively demonstrate that a pipeline owner is a common carrier for the purposes of Texas law. Affected private landowners will still be able to challenge a CO pipeline owner’s self-designation as a common carrier.

Additional Source: Securing Rights-of-Way to CO2 Pipeline Corridors in the United States; The Future of Carbon Dioxide Injection EOR in the United States

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In Phishing for W-2s: IRS Warns of Expanding Cyber Scam, Pillsbury attorneys Catherine Meyer and Kate Nyce cautioncyber-300x225 all employers to be aware of and protect against cybercriminals scamming employers into turning over their employees’ W-2s.

Photo:   Blogtrepreneur, Data Breach – Creative Commons

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In its recent Atlantic Systems decision, the Government Accountability Office clarified whether an agency is required or simply has discretion to credit past performance references submitted on behalf of an offeror’s proposed subcontractor. The answer: it depends on the type of procurement. For more information, read our  Taking Credit for Subcontractor Past Performance GAO clarifies when an agency may decline to evaluate a proposed subcontractor’s past performance references.

Additional Source:  Matter of Atlantic Systems Group, Inc., File B-413901; B-413901.2, Decision (Jan. 9, 2017)

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On February 14, the Supreme Judicial Court of Massachusetts reviewed the application of the state’s “anti-SLAPP” law to challenges made against a blogged critique of Cardno Chemrisk, LLC (Chemrisk) and British Oetroleum (BP) in the case of Cardno Chemrisk, LLC v. Cherri Foytlin & Another, confirming that it protects pamphleteers/bloggers. Continue Reading ›

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On February 9, the Oregon Supreme Court affirmed the decisions of the Oregon Environmental Quality Commission (OEQC) and the Oregon Court of Appeals that Oil Re-Refining Company (ORRCO) was strictly liable for “simple” violations of the Oregon State Resource Conservation and Recovery Act (RCRA) rules. The case is Oregon Re-Refining Company v. Environmental Quality Commission of the Department of Environmental Quality for the State of Oregon.

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On February 13, a sharply divided U.S. Court of Appeals for the Fifth Circuit , by a vote of 8 to 6, rejected a petition seeking

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The Dusky Gopher Frog, once known as the Mississippi Gopher Frog, has an average length of about three inches and a stocky body with colors on its back that range from black to brown or gray and is covered with dark spots and warts. (Western Carolina University photo/ John A. Tupy)

an en banc rehearing of the court’s initial decision in the case of Markel Interests, LLC, et al., v. U.S. Fish and Wildlife Service, et al. In its June 5, 2016 decision, the Fifth Circuit held that 1500 acres of private land located in Louisiana is subject to the requirements of the Endangered Species Act (ESA) with respect to the dusky gopher frog, which was determined to be an endangered species in 2001, but whose “critical habitat” was not designated until 2012. At the present time, the species is located only in Mississippi, but the U.S. Fish and Wildlife Service (Service) designated not only several thousand acres of Mississippi land as its critical habitat, but land in Louisiana as well, reasoning that the presence of five ephemeral ponds on the Louisiana land could support the species’ reproduction. Apart from the presence of these ponds, all parties appear to agree that the Louisiana land is otherwise uninhabitable.

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In a case argued on February 1, 2017 and decided on February 13, the U.S. Court of Appeals for the Sixth Circuit held that Maxxim Rebuild Co., LLC’s small manufacturing facility located in Sidney, Kentucky is not a “coal mine” subject to the federal Mine Safety and Health Administration’s (MSHA) jurisdiction. Following workplace safety inspections of this facility, MSHA issued several notices of violation to Maxxim: (a) the absence of a written hazardous chemicals communication plan; (b) a dirty bathroom; (c) an accumulation of oil, fuel and dust on a Caterpillar 988 loader; and (d) citations in connection with a heater and boiler at the facility. Each citation referenced a pertinent MSHA rule which Maxxim challenged before an Administrative Law Judge, who ruled that the shop was “a coal or other mine” under the Section 802(h) of the Federal Mine Safety and Health Act, 30 U.S.C. §§ 801 et seq. (the Act). The Commissioner later upheld this ruling. The case is Maxxim Rebuild Co., LLC, v. Federal Mine Safety and Health Comm’n.

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